No Matter How Small: Child Witnesses in Canadian Criminal Trials

• Author: Jeffrey Nels Westman
• Position: Completed his BA at the University of Alberta and his MA at Royal Roads University
• Pages: 65-88

APPEAL VOLUME 23

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ARTICLE

NO MATTER HOW SMALL:

CHILDWITNESSES IN CANADIAN

CRIMINALTRIALS

Jerey Nels Westman *

CITED: (2018) 23 Appeal 65

INTRODUCTION..................................................66

I. THE STATUS AND DEVELOPMENT OF RELEVANT STATUTORY

PROVISIONS ...................................................67

A. Repealing Section 659 of the Criminal Code and Abrogating the Doctrine

ofCorroboration ...............................................67

B. Amending Section 16 of the Canada Evidence Act to Accommodate

theTestimony of Children ........................................69

C. Sections 486.1 and 486.2 of the Criminal Code and Testimonial Aids

andSupport Persons.............................................72

D. Section 715.1 of the Criminal Code and Video-Recorded Interviews ........73

i. Historical Development of the Statute ............................74

ii. Case Law Developments and the Elements of the Provision............75

II. STRUCTURED INVESTIGATIVE INTERVIEWS......................78

A. e Setting and Structure of an Interview ............................79

i. Child Advocacy Centres.......................................79

ii. Interview Protocols and Methods................................80

B. Suggestibility ..................................................82

i. Identifying Suggestibility ......................................84

C. e “Reasonable Time” Requirement ................................86

CONCLUSION ....................................................87

* Jerey Nels Westman comple ted his BA at the University of Alber ta and his MA at Royal Roads

University; he is curre ntly a second-year JD candidate at the Uni versity of Calgary. He thanks

Instructor Lisa Silver (Facult y of Law, University of Calgary) fo r her assistance with this paper.

Currently on educational le ave, he has worked with the Edmonton Police Serv ice for eight

years(Patrol, Community Polic ing, and Child Protection), and he has exper ience in child forensic

interviewing. He than ks Chief Rod Knecht, Superi ntendent Denis Jubinville, and Inspec tor

Scott Jones (Edmonton Police Se rvice) for their ongoing suppor t of his educational leave.

Theopinions he express es in this article do not represent the o pinions of his employer.

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APPEAL VOLUME 23

INTRODUCTION

After her conviction for witchcra ft in the notorious Salem Witch Trials, but before her

execution, Martha C arrier bemoaned that “[i]t is a shameful thing , that you should mind

these folks th at are out of their wits.”1 Whether she was or was not impugning the test imony

of her adolescent accusers, Ca rrier’s “out of their w its” remark accurately describes t he way

the Court would consider ch ildren and their testimony for centuries: that ch ildren were

imaginative, a nd that the testimony of children was “often inaccu rate because of their

limited memory capacit y” and “especially vulnerable to sug gestive or ‘leading’ questions.”

2

Parliament and the Supreme Court of C anada (“SCC”)—and C anada’s criminal jurists—

endorsed those socio-legal attitudes until the judicial landscape began changing in the

1980s. Since then, Parliament and the SCC have provided subst antial assi stance to the

children providing te stimony in Canada’s courts. is as sistance includes allowin g video-

recorded interviews to be admitted as testimonial evidence, ch ild witnesses to test ify

behind witness protection scre ens or through closed-circuit television (“CCT V”), and

child witnesses to be a ccompanied by trusted persons or support an imals. Provisions like

these in the Criminal Code and Canada Evi dence Act, along with robust developments in

case law, which emerged as a re sult of developments in the judicial and politica l landscape,

made it easier for the court to con sider evidence from child wit nesses.3

With experience working in cr iminal investigations relat ing to child protection, I believe

that the changes to the Criminal Code and Canada Evidence Act are consistent with the

truth-seeki ng functions of the courts and a more reali stic, responsive, and conscientious

approach to the capacities of chi ld witnesses. I also acknowledge, thoug h, that there are

some special vulnerabilities that ca n come with the accommod ations that are made for

child witnesses i n Canada’s criminal tr ials. Crimin al counsel must rema in vigilant to

some special vulnerabilities aect ing the criminal process that may accompany these

accommodations bec ause of the signicance of this ev idence to criminal t rials.

In this art icle, I address, analyze, and contextualiz e some of the statutory provisions

aimed at accommodat ing child witnesses, and I crit ically assess the cha llenges confronting

criminal cou nsel with child w itnesses, part icularly criminal counsel confronting video-

recorded interviews of ch ildren.

In Part I, I review four f undamental statutory provisions pert aining to child witnesses in

criminal tr ials. e aim of this part of the paper is two-fold: rst, to put those stat utory

provisions in historical c ontext, tracking t he development of the law as a reection of

changing socio -legal attitudes towa rds the testimony of child ren; and second, to set

out the current state of the law related to that child evidence in C anada. at hi storical

context aids an unders tanding of those statutory provisions a nd the SCC and Parliament’s

rationale in revisi ng rules of evidence; a nd that allows for an in-depth assessment of the

practices and procedu res involved in the taking of video-recorded inter views of children

(for their use at a trial).

In Part II, I focus on the us e of video-recorded interviews as admi ssible hearsay evidence

under section 715.1 of the Criminal Code.4 What b est practices should be followed when

1 Charles W Upham, Salem Witchcraft: With an Account of Salem Villa ge, and a History of Opinions on

Witchcraft and Kindred Subjects, vol 2 (Boston: Wiggin and Lunt, 1867) at 236.

2 Stephen J Ceci, David F Ross & Michael P Toglia, “Suggestibili ty of Children’s Memory:

Psycholegal Implicatio ns” (1987) 116:1 J Experimental Ps ych: Genl 38 at 39.

3 Criminal Code, RSC 1985, c C-46 [Criminal Code]; Canada Evidence Act, RSC 1985, c C-5 [Canada

Evidence Act].

4 Criminal Code, supra note 3, s 715.1.